Sara Cole Lawsuit Against Los Gatos Reinstated by Appeals Court

can now sue the town of Los Gatos due to injuries she sustained in an accident that occurred Sept. 9, 2007, the 6th Appellate District Court ruled Friday.

Sara Cole, 48, who's now a registered sex offender, had sued the town after a drunk driver, Lucio Rodriguez, struck her at Blossom Hill Park as she was returning to her vehicle, which she had parked between the north edge of the park and Blossom Hill Road.

According to the 39-page ruling, Rodriguez plead guilty to driving while intoxicated and Cole sued both the town and Rodriguez alleging that the road and the area where she had parked were dangerous because of their configurations, coupled with their relative locations, induced park visitors to park where she had parked while inducing eastbound drivers on Blossom Hill Road to drive through that area to bypass stalled traffic on the road.

While the suit was thrown out by a Santa Clara County judge finding no evidence that any dangerous condition existed where the accident occurred, the appeals court ruled that, "... on the contrary, the evidence before the trial court raised numerous issues of fact concerning the existence of a dangerous condition and a causal relationship between the characteristics of the property and plaintiff's injuries. We will therefore reverse the judgment," the three justices wrote.

Cole, who was sentenced last August to six months in Santa Clara County Jail, has now finished her incarceration term and is home without any problems, said her former attorney Mike Armstrong.

On the appeals matter, Cole is being represented by attorney Daniel U. Smith, with the San Francisco-based law firm of Smith & McGinty, who said Friday he was pleased that the suit had been reinstated.

"We think it was the correct ruling because the parking area as it existed then exposed patrons to the risk of bypassing traffic ... that would lead the roadway to avoid stopped vehicles and use the parking area as a bypass. There was only six feet of area for cars to pass and that's not enough room for Ms. Cole to unload the back of her car as many people would do at the park and be safe from bypassing vehicles," Smith said.

"It was a hazard that the town created and I'm happy to see that the court agreed that it was a dangerous condition," Smith noted, adding that the town itself has also agreed that it was dangerous because it's redesigned the area and is rebuilding it to put a raised sidewalk to protect patrons from passing cars.

Town attorney Judith Propp and Town Manager Greg Larson were unavailable for comment Friday.

The court's order now opens the door to a jury trial, which could start in a year depending on the needs for discovery and the trial court's calendar, Smith explained.

However, the attorney who will represent Cole in the next legal proceeding will be Michael A. Kelly of the San Francisco-based law firm of Walkup, Melodia, Kelly & Schoenberger.

The notice of appeal was filed on April 6, 2010.

The injuries sustained by Cole to her legs during the accident nearly four years ago were life-changing, Armstrong said.

Cole began serving her sentence in October and has completed her jail term. "I don't think there's been any problems," Armstrong said of his former client.

"She suffered catastrophic injuries to both her legs," Smith said.

According to the ruling: "The hazard posed by intoxicated drivers at the site of the accident might itself have been foreseeable, and even if it were not, nothing in this record would preclude a jury from concluding that both the nature of plaintiff’s injury and the manner in which it was sustained were foreseeable.  Even if it were shown to be unforeseeable that a drunk driver would collide with a person in plaintiff’s position, it could be found foreseeable that a sober driver would do so, and many if not all of the measures necessary to protect against that risk would also have protected against the risk of injury from a drunk driver."